2024 WAIRC 00075
APPEAL AGAINST THE DECISION OF THE EMPLOYER TAKEN ON 5 MAY 2023
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00075

CORAM
: PUBLIC SERVICE APPEAL BOARD
COMMISSIONER T EMMANUEL - CHAIRPERSON
MR B HAWKINS - BOARD MEMBER
MS H MOIR - BOARD MEMBER

HEARD
:
WEDNESDAY, 14 FEBRUARY 2024

DELIVERED : FRIDAY, 16 FEBRUARY 2024

FILE NO. : PSAB 10 OF 2023

BETWEEN
:
GIANNA TATI
Appellant

AND

COMMISSIONER OF POLICE AS CHIEF EXECUTIVE OFFICER OF THE POLICE DEPARTMENT
Respondent

CatchWords : Public Service Appeal Board - Application to dismiss appeal under s 27(1)(a) - Appellant totally unfit to perform inherent requirements of the position - Reinstatement would be impracticable - Not in the public interest to hear appeal - Section 27(1)(a) application to dismiss appeal upheld
Legislation : Industrial Relations Act 1979 (WA): s 26(1), s 26(1)(a), s 27, s 27(1)(a), s 80I, s 80I(1)(b), s 80L  
Result : Order issued
REPRESENTATION:

APPELLANT : ON HER OWN BEHALF
RESPONDENT : MS S POWER (OF COUNSEL)

Case(s) referred to in reasons:
Brock Delfante v North Metropolitan Health Service [2022] WAIRC 00299; (2022) 102 WAIG 493
Cartisano v Sportsmed SA Hospitals Pty Ltd [2015] FWCFB 1523
DIRECTOR GENERAL, DEPARTMENT OF BIODIVERSITY, CONSERVATION AND ATTRACTIONS V COSENTINO [2022] WASC 306; (2022) 318 IR 183
DURHAM V DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES [2023] WAIRC 00403
Edward Picks v WA Country Health Service [2020] WAIRC 00806; (2020) 100 WAIG 1400
Re v The Inspector of Custodial Services [2013] WAIRC 00830; (2013) 93 WAIG 1776

Reasons for Decision

1 These are the unanimous reasons of the Public Service Appeal Board (Board).
2 Ms Gianna Tati was employed by the Commissioner of Police (Department) as a Level 2 Administrative Officer until May 2023 when she was dismissed for failing to retire on the grounds of ill health. In effect, Ms Tati appeals her dismissal to the Board and seeks reinstatement.
3 At a directions hearing in late July 2023, the Board adjourned the matter until late October 2023 to allow Ms Tati to get further medical evidence. She did not provide the medical evidence by that date and the matter was programmed for hearing.
4 On 14 December 2023, after requests from the Department and the Board, Ms Tati provided her independent medical report by Consultant Psychiatrist Dr Frederick Ng dated 9 August 2023 (IME Report) to the Department.
5 The Department asks the Board to dismiss application PSAB 10 of 2023 because it says the IME Report confirms that Ms Tati is totally unfit for work for the foreseeable future and therefore the Board cannot reinstate Ms Tati. In effect, Ms Tati says the Board should not uphold the Department’s application.
Question to be decided
6 The Board must decide whether to dismiss application PSAB 10 of 2023 under s 27 of the Industrial Relations Act 1979 (WA) (IR Act).
The law
7 In accordance with s 80L of the IR Act, s 26(1) and s 27 of the IR Act apply to the Board’s exercise of jurisdiction.
8 Section 27(1)(a) of the IR Act states:
Powers of Commission
(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —
(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied —
(i) that the matter or part is trivial; or
(ii) that further proceedings are not necessary or desirable in the public interest; or
(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or
(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;
…
9 Section 26(1) of the IR Act provides that in the exercise of its jurisdiction, the Commission (and in this case, the Board) must act according to equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms.
The Department’s case
10 Essentially, quoting from the IME Report, the Department says that Ms Tati is ‘currently totally unfit to work in her pre-injury work unrestricted’ and that this ‘total unfitness for work for her pre-injury duties is applicable into the foreseeable future’. It says the IME Report concludes that if Ms Tati were to return to work, ‘it would pose a significant risk to her psychological health and safety’. The Department says that the IME Report unequivocally rules out the possibility of Ms Tati being able to safely return to her former position.
11 The Department submits that the Board can only quash the decision appealed, which would have the effect of reinstatement. It argues that the Board should not reinstate an employee where to do so would not be to act in accordance with equity, good conscience and the substantial merits of the case. The Department relies on Cartisano v Sportsmed SA Hospitals Pty Ltd [2015] FWCFB 1523 at [46], where the Full Bench of the Fair Work Commission held that reinstatement is not an appropriate remedy ‘if the Commission cannot be satisfied that the relevant employee is fit to perform the inherent duties of his or her former position.’ Here, Ms Tati cannot perform the inherent duties of her former position. Unqualified reinstatement is impracticable and the Board cannot order reinstatement to otherwise effect backpay, by way of compensation order or as an ancillary order: Director General, Department of Biodiversity, Conservation and Attractions v Cosentino [2022] WASC 306; (2022) 318 IR 183 (DG v Cosentino) and Durham v Director General, Department of Communities [2023] WAIRC 00403.
12 The Department submits that a hearing should not proceed if it is clear that there is no remedy that can issue: Re v The Inspector of Custodial Services [2013] WAIRC 00830; (2013) 93 WAIG 1776.
13 In all the circumstances the Department says the Board should dismiss application PSAB 10 of 2023.
Ms Tati’s case
14 In her lengthy reply to the Department’s application to dismiss (comprising 96 pages including attachments), Ms Tati focusses on the history of the matter and what she sees as the unfairness of her dismissal. She raises concerns about the earlier medical evidence relied on by the Department, but does not squarely address the IME Report.
15 Ms Tati gave evidence at the hearing. Broadly, her evidence centred around the Department’s conduct and her dismissal being unfair. In essence, she says her General Practitioner says she is fit for work on a modified basis and she believes that she is fit to return to work for the Department as long as she does not work with the people who injured her.
16 Ms Tati relies on a document produced by her General Practitioner, Dr Swingler, entitled ‘WorkCover WA – PROGRESS certificate of capacity’ (WorkCover Certificate).
17 The WorkCover Certificate states:
4. PROGRESS REPORT


Activities/interventions
Actual Outcome (change in symptoms, function, activity and work participation)
Still required?

Has had contact from WAPOL professional standards unit looking for further information from investigation, completed this last week, awaiting response.


Diagnosis of PTSD was disputed by WAPOL psychiatrist who indicated Adjustment disorder with anxiety which is the current diagnosis.

03/01/2022 Review
20/12/22 Email from work indicating review over the next month and will contact Gianna. Waiting to hear from WAPOL at this stage.

31/01/2023 Review
Still waiting for response from WAPOL.

28/02/2023 Review
Contacted workplace 16/02/23 no change, still investigating (taking a
long time), continues to wait for response.

03/04/2023 Review
Contacted WAPOL has recieved [sic] a reply last Thursday, replied quickly indicating not happy that WAPOL was satisfied with process. Wrote another more detailed response and sent yesterday. Concerned that Union compromised by close relationship with WAPOL human resource. Has been more stressed over the last several months due to process taking too long.

09/05/2023 Review
Teary and upset, Friday afternoon recieved [sic] email stating dismissed. Police sent to door Friday evening for welfare check which Giana [sic] refused, felt this was intimidating. Trouble sleeping now becausing [sic] had dream about story relating to dead abused baby from time at WAPOL. Now avoiding sleep, indicates nothing to live for as feels that work was "stolen from me"

31/07/2023 Review
Remains teary and upset, awaiting separation certificate and last 2 pay slips for Centrelink. Focusing on health, eating and exercising. Has a lawyer for for [sic] dismissal and 2 workers compensation claims.

28/08/23 Review
No change, lawyer has lodged industrial arbitration application for unfair dismissal. Awaiting response 6-8 weeks

03/10/23 Review
No change, weight stable currently, stress and anxiety increased. Herpes simplex flare R eye saw Ophthalmologist commenced Aciclovir, Flarex Drops TDS, Aciclovir Ophthalmic Ointment 3 x daily, Chloramphenicol Eye Ointment and Paraffin Soothing Ointment. May have to sell house to cover debts. Trying to exercise and lose weight.

26/10/23 Review
Lawyer still pursuing, industrial relations tribunal still waiting determination. Mood low currently as child abuse material exposure being triggered more frequently and forcing her to avoid triggers such as stories involving death of or trauma to children. Not seeing a psychologist at present, previous psychologist sessions felt like was taking back to original trauma. Weight stable but decreased exercise due to herpes simplex R eye flaring, has needed further medications. Teary talking about children, no self harm [sic] ideation or suicide plans.

30/11/23 Review
Attended Industrial Relations preliminary hearing, document disclosure and formal hearing 24/03/24. New medical report from Dr Ng Psychiatrist felt similar to Dr Pirto's [sic] report, confirmed yes was injured at work, feels should be able to go back to work but not at WAPOL. Has lost some confidence in process, feels "winners and losers" and feels will "lose". Has a Barrister engaged but expensive. Panic attack yesterday about previous exposure to child abuse material at WAPOL, fnding [sic] going through paperwork stressful and triggering, upset and teary. Sister to help with sorting paperwork. Financially and emotionally feeling overwhelmed, re-reading dismissal letters, found these triggering. Not keen for medication at this stage. Sleeping poorly due to need for money for Barrister for the last several days.

02/01/24 Review
Not much change over Christmas and New Year, more stressed with time, in hands of IR commission and her lawyer. Finds it difficult to deal with trauma to children on media services, takes her back to seeing child abuse material at WAPOL. Angry that left to deal with this by herself. Very low points over several weeks, avoiding mail, not functioning at present. No suicidal or self harm [sic] thoughts.

* (If management activities/interventions are still required, please also list them in Section 6 ‘Injury Management Plan’)
Other factors appear to be impacting recovery and return to work
Comment

5. WORK CAPACITY
Worker’s usual duties
Administrative Officer (Level 2)
Having considered the health benefits of work, I find this worker to have:

full capacity to work from
but requires further treatment
X
some capacity to work from
02/01/24
to
30/01/24
performing

X
pre-injury duties
X
modified or alternative duties
workplace modifications


pre-injury hours
X
modified hours of
7.5
hours/day
3 days/wk

no capacity to work from

to

18 Ms Tati argues that the IME Report does not say that she is unfit for work and that it is unclear from the IME Report how Dr Ng came to his conclusions. Ms Tati submits that Dr Ng was swayed by earlier medical reports and would not want to ‘wrong’ the Commissioner of Police. In effect Ms Tati says the Board should prefer Dr Swingler’s opinion to that of Dr Ng.
19 Ms Tati asks the Board to:
a. reverse the finding and the Department’s decision to dismiss;
b. order compensation;
c. order reinstatement, or in effect order her re-employment in the public sector more generally; and
d. if the Board is unable to reinstate without further medical evidence, direct the Department to pay for ‘an unbiased, independent medical report from a psychiatrist’.
Consideration
20 Ms Tati is now unrepresented. It is understandable that her arguments focus on what she sees as the unfairness of her dismissal. She submits that she does not have to be 100% fit to maintain her employment. But the difficulty for Ms Tati is that the question before the Board is not whether she was unfairly dismissed. It is whether or not Ms Tati’s reinstatement is impracticable.
21 In her Form 8B Notice of Appeal, Ms Tati asks the Board to reverse the Department’s finding and decision, and to reinstate her. Accordingly, if the Board is satisfied that it would be impracticable to reinstate Ms Tati, then the Board must dismiss application PSAB 10 of 2023.
22 To decide this matter, the Board must make a finding about whether it would be impracticable to reinstate Ms Tati if she were able to show that her dismissal was unfair.
23 The Board has considered the materials and submissions the parties rely on.
24 Ms Tati’s former legal representatives arranged for her to be assessed by Dr Frederick Ng, a Consultant Psychiatrist, on 9 August 2023, having sought a three month adjournment on 28 July 2023 for that purpose.
25 Dr Ng produced the IME Report dated 9 August 2023. It is a comprehensive 13 page document. Dr Ng has the qualifications and accreditations one would expect of a person providing an expert psychiatric report. On pages two and three of the IME Report, Dr Ng says he has perused a range of relevant documents. He highlights WorkCover certificates, earlier medical reports dated 21 December 2021, 27 July 2021, 8 November 2021, 10 November 2021, 19 May 2022 and 28 July 2022, as well as Ms Tati’s earlier statements and workers’ compensation claim forms.
26 The IME Report deals with Ms Tati’s background history, family psychiatric history, forensic history, previous personal psychiatric history, previous workers’ compensation claims history, previous medical history, medications, habits, premorbid personality, the incident (described as the first and second subject injuries), systematic enquiry and mental status examination, before moving on to answer the specific questions put to Dr Ng by Ms Tati’s legal representatives.
27 Relevantly, the IME Report states:
She is currently totally unfit to work in her pre-injury work unrestricted, as a level 2 officer with WAPOL.
This total unfitness for work for her pre-injury duties is applicable into the foreseeable future.
She is currently fit to commence a graduated return to work program with a different employer, at very low level, low stress duties… This applies into the foreseeable future.
…
More likely than not she will never be fit to undertake unrestricted duties as level 2 officer with WAPOL into the foreseeable future given her adverse experiences there.
…
…the way I see it, if she were to return to WAPOL is that it would pose a significant risk to her psychological health and safety…
28 Beyond being a medical practitioner, the Board has no information about Dr Swingler’s qualifications and expertise. The WorkCover Certificate is very brief and general. It is not particularly helpful in the circumstances.
29 Ms Tati’s criticism at [14] of the Form 4 that she attached to her Form 4 response to the Department’s application to dismiss, that the IME Report does not deal with two historical events, is unfounded. In any event, it is irrelevant to the question before the Board.
30 There is no evidence before the Board to reasonably find that Dr Ng is other than independent and competent. The IME Report was not undermined at the hearing. In our view, the IME Report provides credible, specific evidence of Ms Tati’s fitness for work.
31 We consider that the IME Report is more persuasive evidence than, and outweighs, Ms Tati’s opinion about her fitness for work, the WorkCover Certificate and the other materials Ms Tati relies on. We prefer the IME Report to the extent of any inconsistency in the evidence about Ms Tati’s fitness for work.
32 In our view, the IME Report makes it clear, and we find, that Ms Tati is totally unfit to perform the inherent requirements of her position.
33 As Allanson J said in DG v Cosentino, ‘On an appeal before the Board, it has the power to hear and determine the appeal and adjust ‘all such matters’ referred to in s 80I(1)(b); that is, any decision of (sic) finding referred to in s 78(1)(b) of the Public Sector Management Act.’ [37]
34 Under s 80I(1) of the IR Act, the Board may ‘adjust’ the decision the subject matter of the appeal. Here Ms Tati asks the Board to reverse the Department’s finding that she disobeyed or disregarded a lawful order to resign on the grounds of ill health and decision to dismiss her from her employment. The effect of adjusting a decision to dismiss is to reinstate the employee to their former position: Brock Delfante v North Metropolitan Health Service [2022] WAIRC 00299 at [50] and Re v The Inspector of Custodial Services at [21]. Contrary to Ms Tati’s submission, the Board has no power to order that Ms Tati be re-employed in the public sector more generally, nor to make a bare order for compensation.
35 Given the conclusions in the IME Report, we consider that Ms Tati is not fit to work as a level 2 officer at the Department at all for the foreseeable future, let alone to return to work in her former position. We accept that returning to work for the Department would pose a significant risk to Ms Tati’s psychological health and safety. In those the circumstances, we find that it would be impracticable to reinstate Ms Tati.
36 We do not consider that the decision of Edward Picks v WA Country Health Service [2020] WAIRC 00806; (2020) 100 WAIG 1400 assists Ms Tati. The facts of that case were very different and Mr Picks was not medically unfit to perform the requirements of his role.
37 We do not consider that the Board’s power would extend to ordering the Department to pay for a further medical report. But in any event we are satisfied that there is sufficient medical evidence before us to establish that Ms Tati cannot be reinstated. Ordering compensation or re-employment more generally within the public sector would be beyond power. Ordering reinstatement would be impracticable and not in accordance with equity and good conscience, because Ms Tati is totally unfit to perform her former position and doing so poses a significant risk to her psychological health and safety.
38 The Board considers that to hear this matter in the circumstances would be contrary to our obligations under s 26(1)(a) of the IR Act. In our view, further proceedings are not necessary or desirable in the public interest. We are satisfied that application PSAB 10 of 2023 should be dismissed. The Department’s application for an order under s 27(1)(a) of the IR Act is upheld.
39 An order will issue accordingly.